2 Federal Judges Express Doubts on Harris’ Appeal

Two federal appeals judges raised doubts in a hearing Monday about key legal claims by Robert Alton Harris, while a third member of the panel who had blocked the condemned killer’s execution issued an unusual attack on unnamed state lawyers for their public comments about the case.

Harris, 37, was convicted and sentenced to death for the murders of two San Diego teen-age boys in 1978. If this latest in an 11-year series of appeals fails, he could become the first person to die in the gas chamber in California since 1967. It was not known when the panel would rule.

In a courtroom filled with nearly 200 spectators, Judges Arthur L. Alarcon and Melvin Brunetti of the U.S. 9th Circuit Court of Appeals seemed skeptical of Harris’ bid for an evidentiary hearing to show he was improperly denied competent psychiatric assistance at his trial.

Questions by both judges reflected reluctance at this point to open the way for a judicial determination of the competence of mental exams performed years ago at the time of trial.

But the third member of the panel, Judge John T. Noonan, seemed more sympathetic to Harris’ claims. And near the conclusion of the tense, 75-minute hearing, he abruptly criticized “lawyers holding high positions in government” for comments made out of court--and he implied that he may consider disciplinary action against them.

The 63-year-old judge, a former UC Berkeley law professor appointed to the court by then-President Ronald Reagan in 1985, warned that a lawyer who “tries his case in the press” could befound liable for “unprofessional conduct.” When the appeal is decided, he will “pursue these questions with the lawyers involved,” he said.

Noonan did not say who he was criticizing or what statements he found offensive--and lawyers on both sides of the case declined to speculate about the target of the judge’s wrath.

Both state Atty. Gen. John K. Van de Kamp, the state’s chief legal officer, and Gov. George Deukmejian, a former attorney general, had been highly critical of Noonan when the judge issued a surprise ruling March 30, blocking Harris’ scheduled execution April 3, to give him more time to pursue his appeal.

Van de Kamp, a Democratic candidate for governor, warned that Noonan’s action could open the way for “years of endless litigation” in hundreds of other cases where a defendant’s mental state had been raised as an issue at trial.

On the day of Noonan’s ruling, Deukmejian said it was “unbelievable” that after 11 years of previous appeals in the case, justice was “once again being indefinitely delayed and denied by a single federal judge.” A week later, on his weekly radio address, the governor said Noonan’s action “demonstrates that the federal appellate courts have broken down.”

A spokesman for Van de Kamp said the clerk’s office of the appeals court had asked for copies of press releases issued on the case by the attorney general’s office, but had not indicated that the request was made in behalf of a judge. A spokesman for the governor said he was aware of no such request to that office.

The central contention in Harris’ appeal is that the two psychiatrists who assisted the defense at his 1979 trial failed to undercover evidence of brain damage and other disorders that would show Harris acted by impulse--rather than premeditation--in the slayings.

Had such testimony been presented to jurors, he might not have been sentenced to death, Harris’ attorneys say. They argue that under a 1985 Supreme Court ruling recognizing the right to competent psychiatric assistance in capital cases, Harris is entitled to a retrial where such evidence can be presented.

But Alarcon noted during Monday’s arguments that in similar cases, three other federal courts had declined to review the competence of psychiatric examinations given to defendants at trial.

In the most recent such ruling, a federal appeals panel in Chicago warned that judicial review of such examinations, long after they occur, would result in a “never-ending battle of psychiatrists appointed as experts for the sole purpose of discrediting a prior psychiatrist’s diagnosis.”

Brunetti also appeared fearful of opening the way for a “battle of psychiatrists.” The judge said he “had a problem” with the defense’s assertion that “if a criminal defendant presents a defense that doesn’t work (at trial), he can find new experts with a new theory” and claim a constitutional right to reopen the question of an expert’s competence.

A lawyer representing Harris on appeal, Charles M. Sevilla of San Diego, argued that contrary to state prosecutors’ contentions, the 1985 Supreme Court ruling entitled a trial defendant to a competent psychiatric exam--not just the appointment of a licensed psychiatrist. “That means more than access to a warm body that holds a degree,” the attorney said.

Had Harris received such assistance, his trial attorney could have presented a “plethora” of medical evidence that the killings were “an impulsive reaction to the stress of the moment,” Sevilla said.

State Deputy Atty. Jay M. Bloom responded that the high court had not granted any sweeping right to competent mental exams. Even if it had, he said, the 1985 ruling could not be applied retroactively to Harris’ 1979 trial.

Bloom also warned of the far-reaching effects should the court give convicted defendants the right to reopen their cases on the grounds they were denied competent psychiatric assistance. “We’re not just dealing with Robert Alton Harris,” the prosecutor said. “We’re dealing with a potential precedent that could affect thousands of cases.”

Another deputy state attorney general, Louis R. Hanoian, was making a similar argument when Noonan suddenly raised the question of the out-of-court statements by state lawyers. The judge said while Hanoian was not liable, he might have an “educational mission” to perform with other lawyers on the question of “unprofessional conduct.”

Then Alarcon, who was presiding, quickly called for a recess and the three judges left the courtroom. Noonan, appearing angry, returned by himself, explaining that Alarcon and Brunetti did not want to participate in this aspect of the hearing because they had not been present March 30 when Noonan issued the stay of execution.

Noonan went on to ask Hanoian if he agreed that it was particularly important for “lawyers holding high positions in government” to meet their “professional obligations” and “provide leadership.” Hanoian responded he thought that all lawyers should do so.

“I am not going to say any more now, but the questions of professional responsibility remain,” the judge said. “I will have the opportunity to examine them further when (this case) is concluded, and I will, I believe, have reason to pursue these questions with the lawyers involved.”

After the hearing, chief Assistant Atty. Gen. Richard B. Iglehart told reporters that he did not know who the judge was talking about. “But it’s inescapable that this is a case that’s had a lot of press attention,” he said.